168 Iowa 457 | Iowa | 1915
Locher, or his assignor Wernimont, obtained judgment against Livingston in justice court. Livingston appealed to the district court and Putnam, appellant herein, became surety on his bond. On trial in the district court Locher again prevailed. The court, under date of June 6, 1912, in disposing of the case, made an entry or minute upon its calendar as follows: “Judgment against defendant on one note and costs. Clerk assess, including statutory attorneys fee,” no mention being made on said calendar of the appeal bond or surety. The clerk entered judgment in the ease, naming Livingston alone as defendant, and making no mention of said bond or surety. At the February, 1913, term of said court, the plaintiff filed a motion for an order correcting the clerk’s entry and for judgment against the surety on the appeal bond. In support of the motion it was alleged that the failure to make such entry at the time judgment was en
The appellant quotes to us the decision of other courts as holding a different doctrine but none of them, so far as we have been able to ascertain, undertake to consider the effect of statutes like our own. To hold that an appellee in such case loses all remedy against the surety or is driven to bring another action upon the bond is to exalt form above substance and unnecessarily prolong litigation.
We find no error in the record and the judgment below is — Affirmed.